Namrata vs Kshipra

C.V. Bhadang, J—By this appeal, the original respondent-wife is challenging the judgment and order dated 15.10.2001 passed by the learned Judge, Family Court, Nagpur in Petition No. A-352/1996. By the impugned judgment, the Family Court has allowed the petition filed by the original petitioner Mukund Tole (since deceased) thereby dissolving the marriage between the appellant and said Mukund Tole (hereinafter referred to as the deceased respondent) under Section 13(1)(i-a) and (iii) of the Hindu Marriage Act, 1955 (the Act of 1955, for short).

The brief facts are that the deceased respondent Mukund Tole was earlier married with one Mrs. Shailaja, who expired on 30.12.1991. He has a girl child from the said wedlock by name Shipra, who is the present respondent. At the time of death of Shailaja, Shipra was a school going child and was required to be looked after. Hence, the deceased respondent had decided to remarry, so that minor Shipra can be looked after. It appears that one Smt. Bhagyashree Abhyankar, who is cousin sister of Mukund Tole, was instrumental in the second marriage of Mukund with the appellant, which was solemnized on 8.11.1992 at Solapur. According to Mukund Tole, when he along with appellant and other relatives were returning by a vehicle from Solapur to Nagpur, the appellant started behaving in a queer manner, in as much as she kept moving her hands on his lap and chest. Mukund Tole felt embraced on account of such behaviour of the appellant in the presence of the relatives. It was further contended that behaviour of the appellant in the matrimonial house was weird. She used to get up in the dead of the night and used to clean the utensils, which were already cleaned thus causing disturbance and annoyance to the family members and the neighbours. Further, according to Mukund Tole, the appellant used to read some books on ''Tantra Mantra'' and used to visit burial grounds. It was then contended that on 26.12.1992 the appellant and Mukund had gone to their family deity at Mardon Goa. Their in the night at about 2.00 am the appellant started washing all the clothes which were already washed. The appellant also used to come out of the bathroom without wearing any clothes in front of the family members. According to the deceased respondent Mukund, the appellant was a nymphomaniac. She never used to bother about the presence of the relatives and the family members and failed to maintain decency. The appellant also abused the deceased respondent as also Shipra and also physically assaulted her. In short, according to the deceased respondent, the appellant had treated him with cruelty of such a nature and degree and on account of which, it was not possible for him to stay under the same roof and carry on with the matrimonial relationship. It was also contended that the appellant was incurably of unsound mind and he cannot reasonably be expected to live with the appellant (original respondent). The original respondent thus filed a petition for dissolution of marriage under Section 13(1)(i-a) and (iii) of the Act of 1955, before the Family Court at Nagpur.

The appellant resisted the claim by filing written statement Exh. 18 in which she also raised a counter claim for restitution of conjugal rights. All the adverse allegations made in respect of the alleged cruelty and the behaviour of the appellant were denied. It was denied that the appellant was suffering from any mental disorder. It was contended that the appellant was brought up in a small town and initially it was difficult for her to adjust herself in the sophisticated family of the respondent. Thus, mainly on account of initial incompatibility, that certain disputes arose, which were nothing more than ordinary wear and tear of marriage. It was thus denied that the appellant had treated the respondent with cruelty. All the allegations about the incidents attributed to the appellant, have been denied.

The Family Court raised as many as eight issues. The deceased respondent Mukund Tole examined himself, apart from eight other witnesses. The appellant examined herself. The parties produced certain documents, comprising of exchange of letters.

The learned Judge of the Family Court found that the appellant had treated the deceased respondent with cruelty and as such answered issue No. 2 in the affirmative. However, the ground under Section 13(i)(iii) was held not produced, thus answering issue No. 3 in the negative. It was also found that there was no bar under Section 23 of the Hindu Marriage Act in entertaining the petition. In the face of such a finding, the petition came to be allowed granting a decree of divorce on the ground of cruelty alone, while dismissing the counter claim of the appellant for restitution of conjugal rights. During the pendency of this appeal, the original respondent Mukund Tole died and his daughter, Shipra Tole has been brought on record.

On behalf of the appellant, Civil Application (F) No. 1587/2013 has been filed for creation of charge on the properties of the deceased respondent for maintenance of the appellant under Section 25 of the Act of 1955. It is contended that after the death of Mukund Tole at Pune on 11.12.2011, he is survived by his daughter Shipra Tole, who is presently staying along with her maternal uncle Vinayak Karkare at Pune. The appellant has no source of income and on account of her old age is unable to maintain herself. It is contended that the deceased respondent had sold his Nagpur properties somewhere in the year 2004-05 and had purchased property in the name of his daughter Shipra and brother-in-law Vinayak Karkare at Pune. The municipal extract of the property is produced at Annexure-1 along with the application. It is contended that the rental value of the said flat is not less than Rs. 15,000/- to Rs. 20,000/- per month and is sufficient to provide maintenance to the appellant. It is contended that Vinayak Karkare is an ostensible owner. It is contended that the issue of permanent alimony is very much subsisting and in order to secure the same, a charge needs to be created on the aforesaid property namely Flat No. 6, Sankalp Society, Erandvane, Pune, which is standing in the name of Shipra Tole and Vinayak Karkare.

That application has been opposed on behalf of the respondent. It is contended that application is misconceived. It is also not supported by any affidavit. The respondent Shipra is married and is living at Alandi along with her husband, in-laws and a son. She keeps visiting her maternal uncle (Vinayak Karkare) and on such occasions stays in the flat. The respondent is a housewife and has no source of income and is dependent on her husband for her livelihood. It is contended that the only issue, which arises in the present appeal, is about the legality of decree of dissolution of marriage of appellant and Mukund Tole and the appellant cannot justifiably seek the order of creation of charge therein.

We have heard Shri A.A. Badhe, the learned counsel for the appellant and Shri Ritesh Badhe, the learned counsel for the respondent.

It is submitted by the learned counsel for the appellant that the appellant was coming from a small town and had some initial difficulties in getting her adjusted to the sophisticated family of her husband at Nagpur. It is submitted that only on account of this, some minor differences which usually arise in the matrimonial relationship cropped up and they cannot partake of the nature of matrimonial cruelty so as to grant decree of divorce. It is submitted that the learned Judge of the Family Court has thus misread the evidence holding the ground of cruelty, as proved. It is submitted that the material question which survives in the appeal is about grant of permanent alimony under Section 25 of the Act of 1955. It is submitted that this court may create a charge on the flat which is jointly standing in the name of respondent Shipra Tole and her maternal uncle Vinayak Karkare at Pune, so as to secure the amount of permanent alimony and then the parties can be relegated to the competent court.

On the contrary, it is submitted on behalf of the respondent that the learned Judge of the Family Court has correctly appreciated the evidence on record and has come to the conclusion that the appellant had treated the deceased respondent with cruelty of such a magnitude and degree in which the deceased respondent was not reasonably expected to continue with the matrimonial relationship. He, therefore, supported the impugned judgment and decree granting decree of divorce. In so far as the claim made in CAF No. 1587/2013 is concerned, it is contended that the Family Court has not granted permanent alimony under Section 25 of the Act of 1955 to the appellant, while deciding the petition for divorce. It is submitted that the appellant cannot raise such a claim at this stage at this distance of time and that too after the death of Mukund Tole. It is submitted that unless and until there is an order of granting permanent alimony under Section 25 of the Act of 1955, there is no question of securing any such amount by creation of a charge. It is submitted that there is no material on record to show that flat at Pune was purchased out of the sale proceeds of any property held by Mukund Tole at Nagpur. It is thus submitted that the application is clearly misconceived.

We have considered the rival circumstances and the submissions made. With the assistance of the learned counsel, we have perused the evidence on record as also the impugned judgment. At the outset, it needs to be stated that on account of the death of Mukund Tole, the counter claim of the appellant for restitution of conjugal rights does not survive. Thus, the only points, which arise for our determination in this appeal, are as under:

"[1] Whether it is proved on record that the appellant had treated the deceased respondent with cruelty.?

[2] Whether impugned judgment and decree granting a decree for dissolution of marriage under Section 13(1)(i-a) of the Act of 1955 is legal and proper.?

[3] Whether the appellant is entitled to order for creation of charge for securing the amount of permanent alimony, as prayed for in CAF No. 1587/2013.

[4] What order?"

Point Nos. 1 and 2 : Mukund Tole has stated in his evidence that after the death of his first wife Shailaja on 30.12.1991, he had decided to remarry, so that his daughter minor Shipra from his first marriage and his family members can be looked after. He has stated that his cousin sister Bhagayashree Abhyankar was instrumental in his second marriage with the appellant which was solemnized on 8.11.1992 at Solapur. He has then stated about the incident in which while travelling back to Nagpur after the marriage along with his daughter and two juniors and others, the appellant started behaving in an indecent manner. He has stated that he asked her not to behave in such manner or else she may shift to the back side of the car. However, the appellant insisted to sit by his side. He suspected that the appellant had some psychological disorder. He has then stated about the behaviour of the appellant in which she used to wash utensils and clothes, which were already washed, in the dead of night. He has then stated about the incident which had happened at Goa during their visit to the family goddess in which at about 1.00 am in the night, the appellant started washing the clothes. The deceased respondent has also stated about the absence of any inhibition on the part of the appellant, in the matter of keeping matrimonial relationship. He has stated that while doing so the appellant was unmindful of the presence of the others in the house. He has also stated about the appellant coming out of the bathroom without any clothes in the presence of the other family members. He has stated that his junior Hingolikar as also his daughter and servant had seen the appellant in such a condition. He tried to persuade the appellant, however, to no avail. The deceased respondent had then stated about the abuses and the filthy language used by the appellant towards him. It is not necessary to reproduce the same, as they have been clearly set out in the evidence of the deceased respondent and the impugned judgment. He has also stated about the appellant failing to take care and look after his daughter. He has then stated about the appellant attributing extra marital relationship of the deceased respondent with Smt. Tara Lohit.

We have carefully gone through the evidence of the deceased respondent and nothing adverse has come in the cross examination, so as to discredit his version. The deceased respondent has then examined Bhagyashree Abhyankar (PW2), his cousin sister, who had settled his marriage. She has stated about the incident which had occurred in December, 1992 at Goa and had written a letter Exh. 43 to the deceased respondent. She has also stated about the appellant attributing illicit relationship between her and the deceased respondent.

PW3 Digambar Degwekar is a childhood friend of the deceased respondent, who was present in the marriage at Solapur. He has stated about the incident which had occurred in the vehicle while the appellant, deceased respondent and others were returning to Nagpur. He was mainly cross-examined on a permission by R.T.O, whether three persons were allowed to sit in front of the Jypsy vehicle by which they were returning and about the normal jerks which a person may get while travelling. We do not find that anything significant has come in the cross examination of this witness.

PW4 Shipra Mukund Tole, who is present respondent and the daughter of deceased Mukund Tole, has also stated about the various incidents in which the appellant cleaned the clothes and utensils at odd hours in the night. She has also stated about the behaviour of the appellant towards this witness and of the appellant caressing the deceased respondent while serving food. She has also stated that the appellant told her that since she was a spoilt child, she was not ready to look after her and wanted this to be conveyed to the deceased respondent.

PW5 Sangita Karkare, is the wife of the maternal uncle of Shipra. She has stated about the quarrels in the house of the deceased respondent. This witness along with her husband were staying in the outhouse of the deceased respondent. Except this, there is nothing significant in the evidence of this witness.

PW6 Neelam Pande is a relative of the deceased respondent. She has stated that the appellant had told her that the deceased respondent and her mother Smt. Tara Lohit had illicit relationship between them. There is absolutely nothing in the cross examination of this witness, so as to discard her version.

PW7 Shankar Hingolikar is an acquaintance, who was present in the marriage and used to regularly visit the house of the deceased respondent. This witness had also accompanied the parties to Goa in the last week of December, 1992 and has stated about the incident of the appellant washing the clothes, which were already washed, in the dead of the night.

PW8 Sushama Deshpande is an Advocate and an acquaintance and a junior attached to the office of the deceased respondent, who was a practicing Advocate. She has stated that she was attached to the office of the deceased respondent from the year 1992 and used to attend his office in the morning. She has stated about the incident which had occurred on 17.2.1993 at about 10.00 am when he was sitting in the office, when Shipra came to the office asking the deceased respondent to accompany her for lunch in Karkare''s house. At that time the appellant came into the office and started talking loudly saying that the deceased respondent accepts invitation unmindful her position and does not give any importance to her, as a wife. The deceased respondent asked the appellant to keep quiet. She has also stated that the appellant was alleging that the deceased respondent had illicit relationship with this witness.

PW9 Nutan Jha is again a junior of the deceased respondent and has stated about an incident of quarrel between the appellant and the deceased respondent.

As against them, the appellant had examined herself. Her evidence is mostly in the nature of denial of the allegations.

On a careful consideration of the oral evidence on record, we find that there is enough evidence to come to the conclusion that the appellant had treated the deceased respondent with cruelty. A perusal of the impugned judgment would show that the Family Court has extensively considered the evidence and has also reproduced the language used by the appellant towards the deceased respondent. It would not be necessary to reproduce the same.

The term ''cruelty'' as is envisaged under section 13(1)(i-a) of the Act of 1955 has not been defined. It is now well settled that such a cruelty can be both mental and physical. It comprises of the behaviour and conduct of one of the parties to the marriage which is of such a nature and degree that the other spouse cannot be reasonably expected to live with the respondent in the matrimonial relationship. Having regard to the myriad ways of human behaviour, it is neither possible nor appropriate to lay down any straight jacket formula which can fit in the concept of matrimonial cruelty envisaged under Section 13 (1)(i-a) of the Act of 1955. The question would depend on facts and circumstances of each case. This would also include the context such as the status and position of the parties, their family background and culture and other relevant circumstances. In the present case, the deceased respondent was a legal practitioner at Nagpur and on account of the death of his first wife, had married the respondent with the hope that she would look after the family and particular the minor daughter born out of the first marriage. Appreciated in the said background, it can be said that the conduct and behaviour of the appellant was such as to amount to cruelty of the degree and nature as is envisaged by Section 13(1)(i-a) of the Act of 1955. We are unable to hold that the conduct was merely on account of some initial difficulties in getting adjusted to the sophisticated house of the deceased respondent as the appellant was coming from a small town. We are also unable to accept the submission on behalf of the appellant that the dispute between the parties was in the nature of ordinary wear and tear of marriage and nothing more. Thus, we do not find any reason to interfere with the finding as recorded by the Family Court granting a decree of divorce on the ground of cruelty. The point Nos. 1 and 2 are thus answered in affirmative.

Point No. 3 : At the outset, it needs to be stated that CAF No. 1587/2013 is entirely misconceived. There is no order granting permanent alimony under Section 25 of the Act of 1955 passed by the Family Court while deciding the petition for divorce. There is also no evidence that the flat at Pune in which Vinayak Karkare is staying, was purchased out of the sale proceeds of the property of the deceased respondent at Nagpur. PW5 Sangita was cross-examined on this aspect and she has stated that the flat at Kothrud in which she along with her husband is staying is their own. She has denied that the flat is owned by the deceased respondent. The appellant has not shown any provision under which she is seeking such an order which may be in the nature of attachment before judgment. It is needless to mention that the appellant, as a divorced wife, can take recourse to appropriate remedy, if available in law for her maintenance. However, the appellant cannot justifiably pray for an order of creation of charge on the property namely flat situated at Kothrud, Pune, as prayed in the application. In such circumstances, CAF No. 1587/2013 cannot be favourably considered and is hereby rejected. Thus, point No. 3 is answered in negative.

In the result, the appeal is hereby dismissed, with no order as to costs.